Working Paper

United States Foreign Policy, Global Magnisky Act &Social Media Monitoring in Uganda

United States Foreign Policy , Global Magnisky Act and Social Media Monitoring in Uganda


By Samuel Matsiko

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On 27th August 2019,Ismail Ajjawi a  Palestinian student admitted to Harvard University was detained at Boston International Airport, denied entry into the United States and his visa was cancelled. According to a statement issued to the Harvard Crimson by Ismail Ajjawi, the immigration officers deported him after they disapproved of his friend’s political comments on social media. 

In the past few days, several Ugandan officials including the permanent secretary to the judiciary Pius Bigirimana, deputy secretary-general of the ruling National Resistance Movement party Richard Twondongo, National Resistance Movement deputy treasurer Keneth Omona, Spokesperson of the National Resistance Movement secretariat Rogers Mulindwwa, Army  General Peter Elewulu and assistant inspector of police Asuman Mugenyi were denied US visas on allegations of corruption and human rights violations.  

This comes weeks after the US Department of Treasury’s Office of Foreign Assets Control sanctioned the former inspector general of  the Uganda police force General Kale Kayihura under the Global Magnitsky Act. The Department also publicly designated his spouse, Angela Umurisa Gabuka, his daughter, Tesi Uwibambe, and his son, Kale Rudahigwa.

However, we need to look way beyond the allegations of corruption and human rights violations and look at the digital footprint of these individuals and their affiliates. What social media data did some of these individuals submit during their visa applications? What is their social media inventory including that of their affiliates and superiors for the last five years?  How is social media monitoring shaping domestic and foreign policy? Why we need to pay attention to social media monitoring by Governments.

The United States federal government agencies, in particular, the Department of Homeland Security and the Customs and Border Protection Agency have expanded their social media monitoring programs. At the beginning of June 2019, the United States State Department issued a social media policy for all visa applications. The policy requires all visa applicants to submit social media accounts they have used in the last five years including emails and accounts with end to end encrypted messaging applications like WhatsApp and telegram.

Such social media account information would give the United States government access to photos, locations, dates of birth,  IP addresses, religious opinions, political opinions and other personal data commonly shared on social media. This would probably make the United States the social media data capital of the world considering the millions of annual United States visa application.

The United States  Customs and Border Protection Agency uses social media monitoring software. The most notable software is dunami a product of a silicon valley company PATHAR linked to a CIA venture capital firm called In-Q-Tel. These digital tools were initially designed to determine networks of association and the potential of radicalisation on the war on terror. However, the tools can also be used to collect data points on individuals who commit gross human rights violations. 

American soft power is declining in a world where the global agenda is shaped by Twitter feeds. Two years ago, President Donald Trump’s budget director, Mick Mulvaney, proclaimed a hard power budget that would have slashed funding for the State Department and the US Agency for International Development. Uganda is beginning to experience this American foreign policy hard power through the Global Magnisky Act.  The United States to deny several senior  Ugandan government officials visas after years of mutual cooperation is totally unprecedented. I may not have evidence to substantiate my arguments but the United States must have collected a treasure trove of data points on these individuals and their affiliates to have an evidence-based reason to deny them visas.

Uganda with a social media tax regime is a very unique country when it comes to social media. Interesting social media cases include but not limited to city lawyer Fred Muwema v Facebook, Havard Student Hillary Seguya’s suit against  President Yoweri Museveni for blocking him on Twitter and Dr Stella Nyanzi’s conviction for cyber harassment. 

This year the  Uganda Communications Commission a regulatory body hired a social media monitoring personnel and issued a policy for social media influencers to register with the commission. A time has come for Ugandans and the world to pay critical attention to their digital footprint. Social media and the Global Magnisky Act is influencing domestic and foreign policy way beyond our likes and shares.

Samuel Matsiko is a Ugandan lawyer 


Academic Persecution: Independent International Crime or Subject to a Connection Requirement?

Academic Persecution: Independent International Crime or Subject to a Connection Requirement?

Around the world today, Turkey, Hungary , China, Syria, Iran & Uganda, scholars  and academics are attacked because of their words,  ideas and their place in society. Those seeking power and control work to limit access to information and new ideas by targeting scholars, restricting academic freedom and repressing research, publication, teaching and learning.

Scholars ask difficult questions and that can be threatening to authorities whose power depends on controlling information and what people think. When academics are silenced or subjected to self censorship their communities are disadvantaged. Every year thousands of academics across the world are harassed, censored tortured and killed. The persecution of academics has occurred repeatedly in the course of human civilization. Notable examples are the migration of the Greek scholars from Constantinople to Italy, the expulsion of the Huguenots from France , the intelligenzaktion of scientists and academics in occupied Poland and the arrest of Sudanese  biology Professor Farouk Mohammed for teaching evolution.

The purpose of this article is to moot the conversation on academic persecution and its place in international criminal law as an independent crime. Is academic persecution an independent international crime or does it require a connection element?

Article 7(1)(h) of ICC Statute ,Connection Requirement and Ambiguities

The crime of persecution has always been subject to debate and raises fundamental questions.

Is persecution an independent international crime ?

Does the crime of persecution require a connection element?

Article 7 of the ICC Statute in the verbatim states that a crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population,with knowledge of the attack The ICC statute further describes the crime of persecution in (Article7(1)h) :Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court. The statute goes on to  provide that for the purposes of the above : Persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.

The ICC elements of crime provides the following  constitutive elements for the crime of persecution including the mental element as follows:

  • The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights.

  • The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.

  • Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.

  • The conduct was committed in CONNECTION with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.

The International Criminal Tribunal for the former Yugoslavia(ICTY) has a measurable body of  jurisprudence when it comes to the international crime of persecution. For example, out of the ninety (90) who to date have been convicted by the ICTY, forty(40) had been charged with the crime of persecution. It is important to note that the crime of persecution was hardly applied in international or national law before the start of the ICTY proceedings. The ICTY case law dealing with the crime of persecution is one of the most important contributions of the ICTY to international criminal law. This body of jurisprudence clearly rejects that the crime of persecution needs to be subject to a connection requirement. The (ICTY), in the Kupreškič case, affirmed that:The Trial Chamber rejects the notion that persecution must be linked to crimes found elsewhere in the Statute of the International Tribunal.

The other dilemma that has emerged is the problematic formulation by the International Law Commission (ILC) work on the proposed crimes against humanity convention. The ILC formulation provides for a rather troubling connection requirement for the crime of persecution with specificity to geneocide and war crimes. Article 3(1)(h) of the Draft ILC Articles reads as follows: Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or in connection with the crime of genocide or war crimes. The chairman of the ILC drafting committee Mr. Mathias Forteau stated in his report that the act of persecution defined in sub-paragraph (h) refers to any act “in connection with the crime of genocide or war crimes” while the ICC Statute refers to “any crime within the jurisdiction of the Court”.

I do argue that the use of the terms “in connection with” is vague, problematic, and susceptible to many interpretations and misinterpretations. In sum, these ambiguities trigger the need to moot a conversation on the international crime of persecution especially the persecution of scholars and academics and its place in international criminal law. Is it an independent international crime without a nexus to other crimes?If i  were to give the text of the statute its ordinary meaning or interpretation, persecution as a crime against humanity is an independent international crime without the need for a connection requirement. To my knowledge the connection requirement has no basis in international law and was merely a juridictional filter by the drafters of the text.

Scholars like Professor Gerhard Werle in the second edition of his book principles of international criminal law explained that “The requirement of a connection was intended to take account of the concerns about the breadth of the crime of persecution. With this accessorial design, the ICC Statute lags behind customary international law, since the crime of persecution, like crimes against humanity, has developed into an independent crime

Academics and scholars do belong to an identifiable group or collectively because of their scholarship. Perpetrators especially repressive and dictatorial regimes target such person or persons by reason of their identity as a group. The perpetrators often severely deprive, contrary to international law, one or more persons of fundamental rights. It is important to note that the crime of persecution as a crime against humanity is not about numbers, the text of the elements of crimes uses the wordperson or persons”. In Turkey as of 2016 approximately 23,400 academics were persecuted by the Turkish authorities. In Uganda as of December 2018 Dr. Stella Nyanzi was arrested and 45 academics at Makerere university were sacked without due process. The appaling  emergence of  academic perseuction across the globe needs to be viewed from an international criminal justice persective.

In sum the travaux preparatoires among government delegates during the negotiations of the ICC Statute clearly illustrates that the connection requirement was simply a compromise clause and merely a jurisdictional filter. I do believe that the requirement of a connection to other crimes was simply used as jurisdictional filter considering the scope of persecution as an international crime. The unsettled field of international criminal law often tends to create new constituencies that ought to be subjected to further academic interrogation. The need to moot a conversation on academic persecution as an international crime  is not only neccesary it is timely.

Samuel Matsiko is a Ugandan Lawyer.


Emotional intelligence: a tool to increase the performance of the entrepreneur in DR Congo

Many people were shocked when the Harvard business review in 2016 has listed the most to least empathetic companies in the world, no surprise that Facebook was the first on the list. As the world will always remember Mark Zuckerberg issuing a statement on his Facebook account about the fatal police shooting of Philando Castileb in USA saying that “While I hope we never have to see another video like Diamond’s, it reminds us why coming together to build a more open and connected world is so important — and how far we still have to go”.

The deed made by the CEO of Facebook is called empathy and Daniel Goleman considered it as one of the components of the emotional intelligence if not the most important one. Empathy is the ability to see the world from another person’s perspective the capacity to tune into what someone else might be thinking and feeling about a situation (Osisioma, Nzewi & Osisioma, 2016, P.3)

The world is changing so fast with technology and social media, entrepreneurs in Kinshasa must learn and develop some new skills to run their businesses successfully. Many studies have shown that opportunity is the key element that make a difference between a successful entrepreneurs and a common one. Chell, Hawort & Bearly (1991) argued that successful entrepreneurs have the quality of seeing business opportunities and starting appropriate actions.

Being able to recognize opportunities will enable entrepreneurs in Kinshasa to face the competition in the market place. Kinshasa being the capitol of the Democratic Republic of Congo is overflow by the foreigner’s investor such as: Lebanese’s, Indian, Kenyan, Chinese and many others. One of them told me that “it is easier to make money in Kinshasa than in India”.

According to Baron (2008), the application of emotional intelligence is considered important in business. This is because positive emotions enhance entrepreneurial creativity and opportunity recognition.

Emotional intelligence is the best tools for the entrepreneur in Kinshasa; however, they must be willing to learn and to master the five components that defined it such as : Self-awareness,  Self-Regulation (or  Management), Motivation, Empathy (Social  Awareness), and Social Skills  (Relationship  Management).

As the Harvard business review said “Empathy has never been in more explicit demand from corporate leaders” and I believe that this is so true for the entrepreneur in Kinshasa.

Employee theft within Small Businesses in Kinshasa, DR Congo – By Michael Kongo

Growing up in a business family where almost everyone was an entrepreneur such as father, mother, uncle, brother in law and even neighbors. What seemed to be a family thing in one of the small town in the Republic of Congo was in fact, one of the greatest activities in the world. According to some authors (Kuratko &Richard, 2004; Davis and Harveston 1998; Hodgetts, 2004; Lam, 2009), more than 90 percent of all enterprise in the world is a family business. In Malaysia, SMEs accounts for 99.2 of all businesses GDP (SME Annual Report 2006- Negara Malaysia).

However, Researchers have shown that  only 30 percent of all families businesses go  into  the  second  generation  and  more  or  less  15  percent  that  sees  the  third  generation  (Friedrich,  2011&  Davis  1998). Employees’ theft is one of the main reasons for that failure as it is responsible   for   about   33   per   cent   of bankruptcies that occur (Walsch, 2000; Kennedy, 2012; Nkonoki, 2010; Gill, 2008; Katsouris and Aaron Sayne, 2013; Hinds, 2005 Hollinger and Davis (2001).

Kennedy (2012) argued that employee theft occurring specifically within small businesses has received much less empirical attention, and almost no attention has been given to how these acts affect the owners and managers of small businesses and the study of Iyenda (2005) has demonstrated how it was difficult to build a successful enterprise in Kinshasa and adding the employee’s theft on top it can only cause more damages.

The present article has asked one question “How employers and owners can protect their family business from theft and fraud”

The  retail  council  of  Canada report  have demonstrated the 10, 10 and 80 rules that said that 10 percent of your employees will never steal from you, the other 10 will always steal from you whenever the circumstances that goes hands to hands to the greedy one. But what is so interesting is that the rest of the 80 will go either that way or mostly depending of the opportunity that has been presented to them.

The hanover insurance group has proposed some rules that entrepreneur can use among that: Pre-employment Screening, Procedural Controls and Devices, Improving Job Satisfaction and Apprehension and Prosecution.

This study stated that these principals are relevant in Kinshasa and it will reduce theft among employees. Please read more in the attached article.

Narrating my first data generation experience

Sarah Jemutai and Janet Chipchirchir Ronoh are DAAD/CERM-ESA Master’s scholarship holders from Kenya registered at Nelson Mandela Metropolitan University (NMMU) in South Africa. Here, they narrate what they experienced as they conducted their field work and generated data for the first time as postgraduate research students.  Sarah’s study focuses on ‘the effect of using a six-brick duplo block guided play approach on pre-school learners’ visual perceptual abilities’, while Janet’s is exploring ‘indigenous knowledge in the school curriculum: teacher educator perceptions of place and position’. Both students are conducting their studies in South African and Kenyan schools and have successfully defended their proposals in May 2016.

Sarah’s narrative on introducing her intervention and testing visual perception abilities

I conducted my field work and generated data with five to six year old pre-school children in a middle income primary school in Port Elizabeth using a mixed-methods quasi-experimental pre-post-test design. I began the data generation process by administering a written pre-test on the learners’ visual perceptual abilities where learners had to discriminate between patterns which progressively became more complex. The same test will be used as a post-test after the six-brick Duplo block guided play approach intervention has been completed.

Prior to the testing, the class teacher introduced me and Ms Amina Brey, who had worked with the learners previously, my supervisor, Prof Paul Webb, and five fourth year psychology students who assisted with the pre-testing. We took out the Lego bricks and displayed them to the students, explaining that those were colourful toys which we were going to use for playing. We talked with them gently so that they were not intimidated by our presence. The learners were very disciplined and patiently waited for instructions to be given. The experience was a huge learning curve for me as I had mixed feelings before the pre-testing. I had imagined that the learners might be nervous, but to my great surprise, they were carefree and seemed fascinated by the toys and what they could build with them. Without the support of my supervisors, Prof Paul Webb and Prof David Serem, Ms Amina Brey, the psychology students, as well as the learners and teachers in the participating schools, I would not have progressed as well as I did and I would not have successfully administered the tests.



Janet’s narrative on using an imbizo as a method

I had my first data generation experience at a comprehensive South African university where the study participants were isiXhosa speaking academic staff who were familiar with the story of Nongqawuse and the cattle killing episode of the history of amaXhosa. An adaptation of John Peires’s historical account of the 1856/7 account of the ‘Conundrum of the Xhosa Cattle Killing’, which was written in English and then translated into isiXhosa, was employed as a stimulus to investigate the teacher-educators’ perceptions about indigenous knowledge and the school curriculum. A similar stimulus story indigenous to Kenyan teacher educators will also be used when I conduct data generation in Kenya.

My research employs a descriptive case study research design with questionnaires and a modified focus group workshop called an imbizo to further probe the issue of place and position of indigenous knowledge in the school curriculum. The particular focus on an imbizo as a data generation tool was motivated by the need to develop and utilize research tools and methodologies that are indigenous and reflect the African experience. In the Xhosa culture and other Nguni cultures, an imbizo is a formal gathering or meeting often called by the village chief to discuss pertinent issues in the community and to seek solutions to problems. An imbizo was deemed appropriate in this study and more fitting than the conventional interview or focus group discussion often used in scientific research because of the imbizo’s orientation towards seeking a local and authentic experience of a particular historic-cultural experience. The Kenyan equivalent of an imbizo is known as baraza and will be employed among the Kenyan participants.

The participants were invited to participate in the imbizo via email and face-to-face to allow for the personal African approach in building relations between the primary investigator and the respondents. I also visited the participants in their individual offices and introduced myself, said where I came from, why I was undertaking such a study, and told them why their contribution would be important in the study. I was anxious and nervous about whether they would attend the imbizo as it was the end of the semester and the lecturers were very busy with administration of exams but, to my surprise, I had 100% attendance!

During the imbizo, a traditional meal of umngqusho (samp and beans), vegetables and mutton stew was served to the participants to welcome them and make them ‘feel at home’. The participants and I were seated on a circle and the imbizo protocol with topics of discussion was distributed. Some of these topics of discussion included investigating:

  • the isiXhosa Indigenous Knowledge (IK) that the participants know about and whether they feel that they should be included in the school curriculum
  • asking what and how much IK should be included in the curriculum – how does one choose (i.e. what constitutes school knowledge in South Africa (how is it chosen)
  • asking how should the chosen IK be integrated with the existing content in the curriculum (or should it not be integrated but be a separate subject)?
  • asking the group how one might define and validate knowledge for the official curriculum in the face of multiculturalism, globalisation and the internationalisation of knowledge – what are the principles to be used.

I am pleased that this first data generation process via the imbizo approach was such a success. I also had the privilege of meeting the historian and author Professor Jeff Peires in Grahamstown from whom I learnt more about his writings on Nongqawuse. I am also thankful that I attended the Autumn School programme on research methodologies early in the semester as it prepared me for the proposal defence and the data generation experience.